Page:Glossip v. Gross.pdf/76

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GLOSSIP v. GROSS BREYER, J., dissenting

Thus an offender who is sentenced to death is two or three times more likely to find his sentence overturned or commuted than to be executed; and he has a good chance of dying from natural causes before any execution (or exoneration) can take place. In a word, executions are rare. And an individual contemplating a crime but evalu­ ating the potential punishment would know that, in any event, he faces a potential sentence of life without parole. These facts, when recurring, must have some offsetting effect on a potential perpetrator’s fear of a death penalty. And, even if that effect is no more than slight, it makes it difficult to believe (given the studies of deterrence cited earlier) that such a rare event significantly deters horren­ dous crimes. See Furman, 408 U. S., at 311–312 (White, J., concurring) (It cannot “be said with confidence that society’s need for specific deterrence justifies death for so few when for so many in like circumstances life imprison­ ment or shorter prison terms are judged sufficient”). But what about retribution? Retribution is a valid penological goal. I recognize that surviving relatives of victims of a horrendous crime, or perhaps the community itself, may find vindication in an execution. And a com­ munity that favors the death penalty has an understandable interest in representing their voices. But see A. Sarat, Mercy on Trial: What It Means To Stop an Execution 130 (2005) (Illinois Governor George Ryan explained his deci­ sion to commute all death sentences on the ground that it was “cruel and unusual” for “family members to go through this . . . legal limbo for [20] years”). The relevant question here, however, is whether a “community’s sense of retribution” can often find vindica­ tion in “a death that comes,” if at all, “only several decades after the crime was committed.” Valle v. Florida, 564 U. S. ___, ___ (2011) (BREYER, J., dissenting from denial of stay) (slip op., at 3). By then the community is a different group of people. The offenders and the victims’ families